In Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), the court enjoined Biz Markie, his producers, and Warner Bros., his record company, from further distribution of Markie's third album on the grounds that one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s song, “Alone Again, Naturally.” Judge Duffy not only did not consider whether Markie's sample constituted fair use, but also referred the defendants to the U.S. Attorney for criminal prosecution. The prosecutors, exercising their discretion, chose not to follow up on the referral. The case is generally considered the reason standard industry practice ever since is to pay for and receive permission to use any sample of any copyrighted recording. Judge Duffy's opinion opens with these words:
"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.